The Families First Coronavirus Response Act (FFCRA), which in part provides emergency paid sick leave and expanded Family and Medical Leave Act (FMLA) leave for COVID-19 issues, was signed into law on March 18, 2020. Since then, the Department of Labor (DOL) has been busy issuing a series of FAQs to help employers and employees understand the new law. Employers should note that the DOL has clarified that the new paid leave provisions have an effective date of April 1, 2020, not April 2, 2020 as previously expected.
The Equal Employment Opportunity Commission (EEOC) has also issued a series of FAQs and released a webinar to address how employers should address COVID-19 issues in a manner that complies with the ADA and other EEO obligations.
While these resources can help give guidance on the thorny new issues raised by COVID-19, employers should note that FAQs do not carry the same weight as official guidance or regulations issued by either agency. With that in mind, employers should determine whether any new guidance has been issued prior to making employment-related decisions and memorialize whatever information is available at the time of the decision to support the conclusion that it was made in good faith.
Department of Labor FAQs
At the time of this writing, the DOL has issued 59 FAQs regarding implementation of the FFCRA emergency paid sick leave and expanded FMLA. The FAQs provide guidance regarding the following questions:
- How does an employer calculate the 500 employee threshold? (FAQ numbers 2, 3, 39 and 50)
- How does a small business (less than 50 employees) claim an exemption from the paid leave requirements? (FAQ numbers 4, 58 and 59)
- How much will an employee receive in paid leave? (FAQ numbers 5-8, 29 (relationship to unemployment benefits), and 31-34 (supplementing with existing paid leave)
- How much leave is available and how does it interact with previously-available leave? (FAQ numbers 9-14, 31, and 44-47)
- What are the record-keeping and documentation requirements for the new leave? (FAQ numbers 15-16)
- How is teleworking and an inability to work addressed? (FAQ numbers 15-16)
- What about workplace closures and reduced hours? (FAQ numbers 23-28)
- How is employer-provided health insurance handled during the new leave? (FAQ numbers 30 and 51)
- What about multiemployer collective bargaining agreements? (FAQ numbers 35-37)
- Which employees are entitled to the new paid leave? (FAQ numbers 38, 40, 48 and 49)
- How should employees handle denial of the new paid leave? (FAQ numbers 41 and 42)
- Do employees need to return to work when the new leave is exhausted? (FAQ number 43)
- What about public sector employees? (FAQ numbers 52-54)
- How are the exceptions for health care providers and emergency responders addressed? (FAQ numbers 55-57).
Given that the DOL has updated this list multiple times already, employers can expect new information to be added on an ongoing basis.
The DOL has also issued the workplace notice poster for the FFCRA paid leave and a series of FAQs regarding the notice. Employers should note the notice needs to be provided to employees (either by displaying in the workplace or disseminating electronically for teleworkers) by April 1, 2020.
The FAQs addressing the new poster include:
- How does an employer post the notice if the workforce is teleworking?
- Who needs to receive the notice?
- Is the notice available in languages other than English?
- Where should the notice be posted at the worksite?
- Who is required to post the notice?
The DOL notes that it’s possible the notice poster will be updated, making this another area for employers to monitor as the COVID-19 pandemic continues.
Equal Employment Opportunity Commission FAQs
The EEOC has also issued a series of FAQs and a webinar to help employers address COVID-19 issues in a way that complies with their EEO obligations as well. Employers should note that, even if they are not subject to the paid leave obligations under the FFCRA, they still need to make sure they are complying with the ADA and non-discrimination laws when responding to COVID-19.
Through its publication and webinar, the EEOC provided guidance on a number of questions, including:
- What information can an employer request if an employee calls in sick during the pandemic?
- Can an employer take an employee’s temperature at the worksite?
- What can an employer do if the employee refuses to have his or her temperature taken?
- Can an employer require an employee with symptoms of COVID-19 to stay home?
- Can an employer require a fit for duty note when the employee returns to work after being off for COVID-19 issues?
- Can an employer screen an applicant for COVID-19?
- Can an applicant’s temperature be taken as part of a post-offer pre-employment medical exam?
- What can an employer do if an applicant is exhibiting symptoms of COVID-19?
- What information can be disseminated to other employees if an employee tests positive for COVID-19?
- If the employer offers telework because of the pandemic, will that be considered a “reasonable accomodation” once the pandemic subsides?
The EEOC’s recent publications are a good reminder to employers that, even though the COVID-19 pandemic has caused a rapid disruption in the workplace, employers still need to comply with their typical obligations under the ADA and non-discrimination laws generally. Like the information provided by the DOL, employers can expect the EEOC to supplement these FAQs with new information in response to continued issues posed by COVID-19, thus making it important to check for the most current guidance prior to making an employment-related decision during the COVID-19 pandemic.